New South Wales Court of Appeal Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28 February 2005 JUDGMENT DATE: 6 April 2005 JUDGMENT OF: Giles JA at 1; Hodgson JA at 197; Young CJ in Eq at 198 DECISION: Appeal dismissed with costs. CATCHWORDS: MALICIOUS PROSECUTION - whether charges brought with reasonable and probable cause - whether malice - on facts, judge's findings not shown to be in error - FALSE ARREST - whether arrest unlawful because for extraneous purpose - whether judge failed to consider evidence - error not shown - observations on mode of arrest - FAILURE TO PRODUCE SUBPOENAED DOCUMENTS - whether miscarriage of the trial - whether in interests of justice that there be new trial - not shown - DELAY IN JUDGMENT- observations on appellate approach. D Amadio Pty Ltd v Henderson (1998) 81 FCR 149; Australian Breeders Cooperative Society Ltd v Jones (1977) 150 ALR 488; Bar-Mordecai v Rotman [2000] NSWCA 123; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Commonwealth Life Assurance Society Ltd v Brain (1934) 53 CLR 343; Conrad v O'Brien (1990) 101 FLR 107; Davis v Gell (1924) 35 CLR 275; Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; Expedition Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568; Fleet v District Court of New South Wales [1999] NSWCA 363; Goose v Wilson Sandford & Co (1998) 142 SJLB 92; CASES CITED: Grimwade v State of Victoria (1997) 98 Crim R 526; Hadid v Redpath [2001] NSWCA 416; Hazell v Parramatta City Council (1968) 1 NSWR 165; Mitchell v John Heine & Son Ltd (1938) 38 SR 466; R v Dungay (2001) 126 A Crim R 216; R v Lister (1955) 72 WN (NSW) 491; R v Maxwell (CCA, 23 December 1998, unreported); Sharp v Biggs (1932) 48 CLR 81 Varawa v Howard Smith Ltd (1911) 13 CLR 35; Wilson v New South Wales (2001) 53 NSWLR 407; Zaravinos v State of New South Wales [2004] NSWCA 320. Michael Krivoshev - First Appellant Kerry-Ann Faye Donnelly - Second Appellant PARTIES: Royal Society for the Prevention of Cruelty of Animals Inc - First Respondent Kara Piddington - Second Respondent James Peyton - Second Respondent FILE NUMBER(S): CA 40723/03 Appellants in person COUNSEL: A G Todd - Respondents SOLICITORS: Ebsworth & Ebsworth - Respondents LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1596/00; 7666/00 LOWER COURT JUDICIAL OFFICER: O'Connor DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40723/03 DC 1596/00 DC 7666/00 GILES JA HODGSON JA YOUNG CJ in EQ Wednesday 6 April 2005 KRIVOSHEV & ANOR v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NSW INC & ORS Judgment 1 GILES JA: The appellants Mr Michael Krivoshev and his step-daughter Ms Kerry-Ann Donnelly were charged with offences under the Prevention of Cruelty to Animals Act 1979 ("the Act"). Ms Donnelly was arrested in relation to the offences with which she was charged. All charges except one of the charges against Ms Donnelly were disposed of favourably to the appellants. 2 Mr Krivoshev claimed damages from the respondents the RSPCA and Ms Kara Piddington on the causes of action of malicious prosecution, abuse of process and breach of a duty of care in failing properly to investigate the offences. In separate proceedings Ms Donnelly claimed damages from the RSPCA and the further respondent Mr James Peyton on the same causes of action plus what was described as false arrest. The two proceedings were heard together. O'Connor DCJ found verdicts for the respondents and ordered that the appellants pay the respondents' costs. 3 In my opinion, for the reasons which follow the appeals from his Honour's decisions should be dismissed with costs. The charges and their disposal 4 The hearing in the District Court occupied eighteen days, from 26 August 2002 to 30 September 2002. The evidence was extensive, and there need be described only sufficient to understand the judge's conclusions and the issues on appeal. Horses are kept at Kemps Creek 5 From early 1995 Mr Krivoshev and his wife Ms Marina Krivoshev lived on a seven acre property at 860 Fifteenth Avenue, Kemps Creek ("the property"). Ms Donnelly, at the time of the RSPCA's visits in 1997 aged 23, lived with them, as did Mrs Krivoshev's daughter Larissa, aged 13. 6 In November 1995 Mr Krivoshev purchased four horses from an advertisement in the Trading Post. He later sold two of the horses, keeping a chestnut mare and a colt. The mare and the colt ("the horses") and a third horse, an Appaloosa, were kept at the property. The visit by the RSPCA on 9 August 1997 7 The RSPCA received a complaint concerning the condition of the horses. Ms Piddington, an Inspector with the RSPCA, went to the property. She held the degree of Bachelor of Science (Equine) from Charles Sturt University, and had worked in racing stables and studs as well as having her own horses. 8 Ms Piddington saw that the horses were in very poor condition. Both had prominent ribs, spine and hips, narrow muscling and poor coat, and there was little pasture. The judge said that there was no real dispute that the horses were in a poor condition at that time. 9 Ms Piddington spoke to Mr Krivoshev about the horses' feeding. She told him that the current pellet and chaff feed should be maintained and the lucerne hay should be increased, and that someone would return to the property to check on the horses. The visit by the RSPCA on 9 October 1997 10 On 9 October 1997 Mr Brett Bell, the Deputy Chief Inspector with the RSPCA, and another RSPCA officer, Mr Scott Allerton, returned to the property. Mr Bell was not put forward as an equine expert. 11 There was a degree of dispute over what occurred. The judge preferred the account of Mr Bell to that of Mr Krivoshev. 12 Mr Bell observed that the mare was in very poor condition. He said that her hips, vertebrae and rib cage were predominant, she was sunken around the neck and rump, and she had very little fat tissue cover over her body. The colt was "similar, but not as bad". Mr Allerton described the horses as in very poor body condition, "approximate score 1 body condition". From other evidence, scores ran from 0 to 5. The paddock containing the horses had no suitable pasture. 13 The officers were shown the feed available for the horses, being oaten chaff and stud mix but no hay. Mr Krivoshev was asked whether the horses had improved in condition since Ms Piddington's visit two months earlier, and said that they had not. 14 Mr Bell asked Mr Krivoshev whether he was the person in charge of the horses, and Mr Krivoshev answered that "another person owns the chestnut and the colt, but my daughter owns the Appie". Mr Bell asked Mr Krivoshev for the details of the person who owned the horses, and Mr Krivoshev said that his wife had them and would not be home for some hours. 15 Mr Bell told Mr Krivoshev that he would be instructing Ms Piddington to return as the horses had not improved. Seizure of the horses on 10 October 1997 16 On the instructions of Mr Bell, Ms Piddington went to the property on 10 October 1997 accompanied by Mr Peyton. Mr Peyton was an Inspector with the RSPCA, and held the degree of Bachelor of Applied Science (Equine) from Charles Sturt University. They brought a horse float with a view to seizing the horses. 17 Mr Peyton observed that the mare and colt were in poor condition. He described them as having sunken rumps, clearly visible ribs and prominent or clearly visible backbones, and narrow and slack or poorly muscled necks. There was little pasture. Ms Piddington's observations were to the same effect. She said that the mare had marginally more fill between the ribs than on her visit two months previously, but that the colt was in the same condition as before. 18 At a later time Mr Bell and Dr Peter Radvan, the Senior Veterinarian with the RSPCA, also attended the property. 19 The events of the day were greatly disputed in the evidence. The judge preferred the accounts of Ms Piddington and Mr Peyton to that of the appellants, and said that the appellants' behaviour "was at best unhelpful, at times misleading and so far as [Ms Donnelly] is concerned, obstructive". 20 The events occupied some five hours, and were at times confrontational. In summary - (a) Ms Donnelly told Ms Piddington that her name was Katie Kaye and that she was the owner of the horses; (b) in the presence of Mr Krivoshev and Ms Donnelly, Mrs Krivoshev told Mr Peyton that Katie and Larissa owned the horses and Larissa fed them, and that none of Mr Krivoshev, herself or Ms Donnelly fed them; (c) when Mr Peyton asked Ms Donnelly to answer some questions, she became agitated and commenced sobbing, squatted on the ground, and appeared to be dry retching, whereupon he desisted; (d) someone removed the mare to a paddock some distance away from the property, the gate of which was padlocked; (e) when Mr Peyton located the mare and went to load it in the float, Ms Donnelly became agitated and said that the horse was hers and could not be taken, and attempted to take the horse from him; (f) the police were called and ultimately the horses were taken away. 21 Dr Radvan was a veterinarian of eleven years standing. He prepared a "certificate of expert evidence" (see s 177 of the Evidence Act 1995) dated 19 October 1997. He said - "5. I examined the Chestnut mare first, with the following normal findings: Heart Rate 33 beats/min; Ileo-Caecal Valve 1 min 20 sec opening interval; Faecal dropping (sample taken); Teeth in good condition; Height 15.3 hands; Hooves well trimmed. 6. The following findings were abnormal: Weight (by weight tape measurement) about 400 kgs; Lice – the coat was full of lice (more than 15 per hair parting); a large lump on the left side of the neck that felt hard to palpate. I would estimate the horse to have a condition score of 1 (out of a range of 0-5). This animal was very thin, being about 70 kgs underweight. Muscle masses that should normally be substantial (haunches, neck, back) were considerably atrophied. 7. The brown colt was examined next. The following findings were normal: Heart Rate 45 bpm; ICV 30 secs; height 13 hands; Teeth, hooves ok. 8. The following findings were abnormal: weight (by tape) approximately 220 kgs; body condition 1-2; Lice – nits only found. The animal in poor body condition, and quite undersized for his age. The owners, the Kirvoshev [sic] Family, informed me that he had been undersized when they had acquired him. 9. Based wholly or substantially on my specialised knowledge I am of the opinion that both of these animals were considerably underweight. I was informed that the horses had been wormed with Equimec worming paste about a month earlier. I myself examined the faecal sample at the RSPCA Shelter at Yagoona, where I found Stongyle eggs. The density found (29 eggs on the entire slide) was not high, and would not suggest a high parasite infestation but egg counts do not necessarily indicate adult worm levels in the host, although they are a useful measure of potential pasture contamination. I examined the pasture that the horses were kept on, and all the edible herbage had been grazed to ground level. I must therefore conclude that the condition of the horses was due to their having been provided with insufficient and improper nutrition for a period of at least 2 months, and probably longer. This may have been aggravated by parasite infection, although if the horses had been drenched with the drug claimed by the owners, and at the claimed frequency, worms should not have been a significant problem." 22 Mr Mark Lawrie, the Veterinary Surgeon-in-Chief with the RSPCA, examined the horses at the RSPCA's premises on 11 October 1997. He was a veterinarian of thirteen years standing. He prepared a certificate of expert evidence dated 5 December 1997. It said - "4. On the 11/10/97 I examined 2 horses presented to me by RSPCA Inspector Kara Piddington at the stable area of the RSPCA Yagoona Shelter. The first was a chestnut mare aged 22 years, weighing 401 kg, and the second a brown colt 3.5 years old, weighing 195 kg. Both were in poor condition and infested with lice. Fecal samples were taken for parasite analysis. These showed that the mare had an egg count of 150epg which is a low to moderate count and would not, in my opinion, have contributed to causing weight loss in a horse of this age and size and the colt had a negative egg count. Blood samples revealed changes consistent with a low plane of nutrition and dermatitis secondary to the lice infestation. Both horses were wormed and vaccinated with tetanus toxoid and placed on high plane of nutrition which was gradually increased to minimise gastrointestinal complications. They were also deloused on 2 occasions with a pyrethrin spray. The horses were subsequently reweighed on 14/11/97 with the mare weighing 509 kg and the colt 249.5 kg. This was a weight gain of 99 kg and 54.5 kg respectively. 5. In my opinion both horses were on inadequately and improperly feed [sic] for a period of at least 4 weeks prior to my initial examination. I base this opinion on the fact that the horses gained significant weight in response to the feeding regime that we implemented and the absence of disease processes that would have caused weight loss in the presence of adequate feeding." The charge against Mrs Krivoshev 23 On 7 November 1997 a summons was issued, on an information laid by another RSPCA officer, charging that Mrs Krivoshev as a person in charge of a horse failed to provide it with proper and sufficient food. The charge was under s 8 of the Act, which relevantly provided - "8 Animals to be provided with food, drink or shelter (1) A person in charge of an animal shall not fail to provide the animal with food, drink or shelter, or any of them, which, in each case, is proper and sufficient and which it is reasonably practicable in the circumstances for the person to provide. Maximum penalty: 250 penalty units in the case of a corporation and 50 penalty units or imprisonment for 6 months, or both, in the case of an individual." The charge against Mrs Krivoshev is withdrawn 24 The summons against Mrs Krivoshev was listed for hearing at Fairfield Local Court on 28 January 1998. She did not attend, but Mr Krivoshev attended with a solicitor. Ms Piddington also attended at the court. 25 At the court Mr Krivoshev participated in a record of interview with Ms Piddington, in which he admitted that he was the owner of the horses and was the person responsible for their welfare and for feeding and watering them and obtaining veterinary treatment. Mr Krivoshev declined to answer questions about feeding the horses while they were in his care: "That's all I want to say, to identify those horses are mine". 26 Mr Krivoshev acknowledged in his evidence before the judge that he "suspected that [he] would be charged at some stage if, you know, they were going to do it that way, yes." 27 The judge found that Mr Krivochev had not prior to this time made any admissions that he was the owner or the person responsible for the horses, in this respect preferring the evidence of Mr Bell, Ms Piddington and Mr Peyton to that of Mr Krivochev. His Honour said that in the period prior to 28 January 1998 Mr Krivoshev had "embarked on the preparation of a defence", including obtaining expert advice from a Professor Hunt and arranging for analysis of the water in a dam from which it was suggested the horses drank. The advice and analysis were deployed as defences to the later charges of failing to provide food for the horses. His Honour said - "103. The Plaintiff MK at no stage, after the summons was served upon his wife and before the hearing date at Fairfield Court, communicated with the RSPCA to inform them that they had the wrong person. During this time, as mentioned earlier, MK was busily preparing a defence based upon water quality. By 28 January, 1998, I suspect he was in possession of sufficient evidence to defend the charges brought against him, which led to the admission he made to Ms Piddington in the record of interview that day." 28 As a result of Mr Krivochev's admissions, the charge against Mrs Krivochev was withdrawn. The summonses against Mr Krivochev 29 On 28 January 1998 summonses were issued against Mr Krivochev, on informations laid by Ms Piddington, charging that he "from 10 September 1997 to 10 October 1997 at Kemps Creek in the State of New South Wales being a person in charge of an animal, to wit, a mare [in the other summons, a colt] did fail to provide food that was proper and sufficient". 30 At the request of the appellants, conveyed by a letter from their solicitor dated 2 February 1998, an arrangement was made for the horses to be inspected by Ms Donnelly at the RSPCA's Wollongong premises on 10 March 1998. 31 The horses were brought to the premises from another location. Mr Krivoshev was present for the inspection. After the inspection, the summonses were served on Mr Krivochev. 32 No forewarning was given to Mr Krivoshev or his solicitors that the summonses had been issued or that they were to be served on him at Wollongong. The arrest of and charges against Ms Donnelly 33 At the time of serving the summonses Mr Peyton also addressed Ms Donnelly, saying that he had reasonable grounds to suspect that she had committed offences under the Act and that he required that she provide him forthwith with her full name and current residential address. This rested upon 27A of the Act, which relevantly provided - " 27A Officers may demand name and address (1) An officer who finds a person: (a) who is committing an offence against this Act or the regulations, or (b) whom the officer suspects, on reasonable grounds, of having committed or attempted to commit such an offence, may require that person to inform the officer forthwith of that person's full name and residential address. (2) A person shall not fail to comply with a requirement made by an officer under subsection (1). Maximum penalty: 25 penalty units." 34 Mr Peyton said that Ms Donnelly stared at him and did not respond, and that he asked on three occasions whether she understood and repeated that he required her full name and current residential address. In the absence of a response, he placed his hand on her arm and said that she was under arrest "for failing to provide your name and current residential address forthwith, and further for failing to provide food for a horse and obstructing an officer in their lawful duties". 35 No forewarning had been given to Ms Donnelly or her solicitors that she was to be charged. In a memorandum reporting on the arrest written on 10 March 1998 Mr Steven Coleman, the RSPCA Chief Inspector, said that "We of course, did not let on that after Katie viewed the horse, we were entertaining the thought of arresting." 36 Upon her arrest Ms Donnelly squatted on the ground and began crying, as she had on 10 October 1997. An ambulance was called. In due course Ms Donnelly was taken to Wollongong Police Station. 37 At the police station Ms Donnelly produced her drivers licence at the request of a police officer, which gave her name and address. She was taken to an interview room, and a record of interview was taken in which she declined to answer questions in relation to providing food for the mare and obstructing an officer at the time of the seizure of the horses. 38 Ms Donnelly was charged, and was released with a court attendance notice. The three charges were - (a) "Between 10 September and 10 October 1997 at West Hoxton being a person in charge of an animal, to wit, a horse, did fail to provide the said animal with food that was proper and sufficient"; (b) "On 10 October 1997 at West Hoxton did interfer with a person, to wit Officer James Peyton, while that person was performing an authority conferred upon Officer James Peyton under the Prevention of Cruelty to Animals Act 1979-2000"; and (c) "On 10 March 1998 at Fairy Meadow did fail to comply with the requirements made by an officer to inform the officer forthwith of her full name and residential address". 39 The offence of hindering an officer was under s 28 of the Act, which relevantly provided - " 28 Obstruction of persons exercising powers etc A person shall not obstruct, hinder or interfere with any other person while that other person is exercising or performing any power, authority, duty or function conferred upon that other person by or under this Act. Maximum penalty: 50 penalty units." The hearing of the charges against the appellants 40 All charges came on for hearing at the Fairfield Local Court on 29 July 1998 before Shepherd LCM. The RSPCA was represented by Mr Wozniak, and Mr Krivoshev and Ms Donnelly were also represented. Pleas of not guilty were entered. 41 As to the charges of failing to provide food for the horses, the judge said - "Present at Court were the Officers from the RSPCA, together with the expert veterinarians, Mr Lowrie [sic] and Mr Radvan. Shortly prior to the matter commencing, the Plaintiff's counsel produced the report of Professor Hunt and handed it to Mr Wozniak, the solicitor appearing on behalf of the RSPCA. A conference took place with the RSPCA's experts and whilst they did not accept Professor Hunt's theory that the water contamination could explain the deterioration in the horses condition, it was considered that a 'reasonable doubt' could be established and in those circumstances it was not appropriate to proceed against MK and KD with the offences of 'failing to provide food which was proper and sufficient'. In those circumstances, those charges were immediately withdrawn against MK and KD. No application for costs was made on behalf of the Plaintiffs." 42 Professor Hunt had high academic qualifications in veterinary science, and was Associate Professor Animal Production at Orange Agricultural College attached to the University of Sydney. His report was dated 7 May 1998. It had not been earlier provided to the RSPCA, and the RSPCA was not aware of Professor Hunt's involvement until the report was handed to Mr Wozniak. The substance of the report was that, based on a feeding regime told to him by Mr Krivoshev, Professor Hunt did not think the horses had been inadequately fed, and thought that their poor condition could be attributed to drinking water from the dam which was contaminated (as revealed by analysis) by run-off. The judge considered that there were "a number of difficulties with the report", because Professor Hunt had been misinformed as to the feeding regime. 43 The remaining charges against Ms Donnelly continued. Ms Donnelly was found guilty on both charges, and was fined and ordered to pay costs. Appeals from Ms Donnelly's convictions 44 Ms Donnelly appealed to the District Court. The appeals were heard by Howie DCJ on 10 November 1999. 45 On the charge of hindering an officer his Honour found the offence proved, but that Ms Donnelly's psychological state led her to act irrationally and that the charge should be dismissed pursuant to (the then) 556A of the Crimes Act 1900 upon Ms Donnelly entering into a good behaviour bond for eighteen months. Ms Donnelly was ordered to pay costs. 46 As to the charge of failing to provide her name and address, before Shepherd LCM it had been submitted that Ms Donnelly was in a condition such that she could not respond to Mr Peyton's request for her name and address, but his Honour had said that there was "no evidence of a medical nature … convincing me that she was in such a state that she couldn't respond, couldn't properly comprehend … ". A medical report of a Dr Kefalos was tendered before Howie DCJ. His Honour thought it consistent with Ms Donnelly suffering from a post traumatic stress disorder so that she reacted hysterically and was incapable of responding. His Honour considered that the prosecution had to prove beyond reasonable doubt that the refusal to provide the name and address was a voluntary act on the part of Ms Donnelly, and said that, without concluding that she was in a hysterical state in which she was not conscious of what was being asked of her and unable to comply with the demand, he was not prepared to find beyond reasonable doubt that she was not. His Honour therefore found her not guilty. The appellants' causes of action 47 Mr Krivoshev's statement of claim pleaded causes of action under three headings, "The false charge and breach of duty", "Malicious prosecution" and "Abuse of process". 48 For breach of duty it was alleged that the RSPCA and/or Ms Piddington owed to Mr Krivoshev a duty of care which they breached in that they - " … failed properly to investigate the alleged offence before bringing the aforesaid charges against him, more particularly in that they:- PARTICULARS OF BREACH OF DUTY (a) Failed to properly investigate the alleged offences before bringing the aforesaid charges against him, more particularly in that – (i) they knew or ought to have known that the Plaintiff had not failed to provide food that was proper and sufficient in respect of the said animals; (ii) they knew or ought to have known that the water contained within the dam on the Plaintiff's property had been contaminated from run-off from adjoining farms. (b) Failed to conduct a proper and thorough investigation of the facts relevant to the charges which they proffered against the Plaintiff. (c) Failed to carry out the said investigation in accordance with proper practice and procedure. (d) Failed to ensure that prior to the Plaintiff being charged that there was a proper assessment of the material relevant to the sufficiency of any evidence in support of the said charges." 49 It was alleged that but for the breach of duty the defendants would have known that Mr Krivoshev had provided proper and sufficient food to the horses and that the charges would not have been laid. 50 For malicious prosecution it was alleged "that the aforesaid prosecution was malicious", as to which it was said that Mr Krivoshev "will rely on the fact that the prosecution was instituted and continued in the absence of any credible information of [his] guilt". It was then further alleged - " … that the prosecution was instituted, maintained and continued without reasonable and probable cause more particularly in that the First Defendant, by its servants, agents and/or employees and/or the Second Defendant: PARTICULARS (a) Knew or ought to have known that there was no case for the Plaintiff to meet. (b) Failed to conduct a proper and fair investigation into the alleged charges. (c) The maintenance and continuation to justify the unlawful and improper conduct of the officers in charging the Plaintiff in the first place without evidence or adequate investigations. (d) Issuing Summonses against the Plaintiff before any decision to prosecute had been made as evidenced by the unexplained failure to seek to effect service before 10th March, 1998. (e) Failing to effect service upon the Plaintiff's Solicitor ; (f) Serving the Plaintiff so as to maximise his indignity and embarrassment ; (g) Serving the Summonses upon the Plaintiff in the knowledge that a water testing report was pending and in circumstances where requested blood tests had not been provided ; (h) Concealing evidence available and exculpatory of the Plaintiff ; (i) Bringing proceedings so as to avoid disciplinary action by reason of the ill-founded proceedings brought against Marina Krivoshev ." 51 The underlined particulars were added by amendment on 29 September 2002, the penultimate day of the hearing in the District Court. The appellants' counsel put forward these and other amendments to Mr Krivoshev's statement of claim as "simply particulars. There is no new substantive matter in that". There was no effective protest from his opponent, and the amendment was allowed. 52 For abuse of process it was alleged that "the criminal process was used so as to effect an object not properly within the scope of such process", followed by " PARTICULARS OF IMPROPER OBJECT (a) Utilising the criminal process in an effort to justify the unlawful charge of the Plaintiff on 10 March, 1998. (b) Utilising the criminal process in an effort to conceal their earlier negligent and/or improper investigation of events occurring at the time the animals were seized and in the time thereafter leading up to the trial." 53 Ms Donnelly's statement of claim pleaded causes of action under the headings "False arrest and charges and breach of duty", "Malicious prosecution" and "Abuse of process". 54 For the so-called false arrest, as at the commencement of the hearing it was alleged that Ms Donnelly was arrested on 10 March 1998 and taken to Wollongong Police Station and detained for three hours, that the charges were dealt with by the magistrate and Howie DCJ as earlier described, and that in consequence of Ms Donnelly "being charged, her arrest, its sequelae and the trial" she had suffered loss and damage. 55 On the penultimate day of the trial, 29 September 2002, the appellants' counsel applied to amend the statement of claim, relevantly by adding the paragraphs - "13A. The Plaintiffs [sic] arrest and subsequent detention constituted a trespass to the person and the Plaintiff claims damages, aggravated damages and exemplary damages as particularised at Paragraphs 22 and 23 below." "14A. The aforesaid arrest and subsequent detention of the Plaintiff occurred in circumstances where the Defendants had no justification. In the premises, the Defendants are liable to the Plaintiff." 56 Counsel said that the existing narration did not "bracket it all up with an allegation of cause of action", and that paragraph 13A "is in effect the formal pleading of everything that has been put there before". He did not specifically refer to paragraph 14A. 57 Again there was no effective protest, and the amendment was allowed. Thus Ms Donnelly framed her cause of action as trespass to the person, and alleged that there was a trespass to the person because the defendants had no justification for her arrest and detention. 58 For breach of duty, it was alleged that the RSPCA and/or Mr Peyton owed to Ms Donnelly a duty of care which they breached in that they "failed properly to investigate the alleged offence before bringing the aforesaid charges against her and arresting her". 59 The particulars were the same as for Mr Krivoshev, save that it was also particularised that - "(i) They knew or ought to have known that the Plaintiff's father, Michael Krivoshev, had on 28 January 1998 admitted to another RSPCA officer, namely Officer Piddington, that he was the owner of the said horses and was responsible for their welfare and treatment; (ii) They knew or ought to have known the identity, that is, the name and address of the Plaintiff as at 10 March 1998 … " 60 It was alleged that but for the breach of duty the defendants "would have known the identity of the Plaintiff and further that her Father had given a signed statement to another officer of the First Defendant to the fact that he was the owner of the horses and was responsible for the care and treatment of the said horses", and that the charges would not have been laid. 61 For malicious prosecution, it was again alleged "that the aforesaid prosecution was malicious" and that Ms Donnelly "will rely upon the fact that the prosecution was instituted and continued in the absence of any credible information of the Plaintiff's guilt". It was further alleged - " … that the prosecution was instituted, maintained and continued without reasonable and probable cause more particularly in that the First Defendant, by its servants, agents and/or employees and/or the Second Defendant: PARTICULARS (a) Knew or ought to have known that there was no case for the Plaintiff to meet. (b) Failed to conduct a proper and fair investigation into the alleged charges. (c) The maintenance and continuation to justify the unlawful and improper conduct of the officers in charging the Plaintiff in the first place without evidence or adequate investigations. (d) Commencing the proceedings for collateral or improper purposes namely: (i) so as to deflect attention from the proper conduct of Peyton at Wollongong on 10th March, 1998; (ii) in an effort to avoid exposure to disciplinary action. (e) Concealing evidence available and exculpatory of the Plaintiff ; (f) Misrepresenting to superior officers that the Plaintiff was unable to be located ; (g) Deciding to arrest and charge the Plaintiff in circumstances where there existed an unexplained and inordinate delay between the events relied upon to found the Charges, and the taking of any steps to initiate proceedings against the Plaintif f; (h) Orchestrating the unlawful assault and detention of the Plaintiff to facilitate further questioning of her ; (i) Charging the Plaintiff notwithstanding knowing that a water testing report was pending, and in circumstances where requested blood tests had not been provided ; (j) Utilising the criminal process otherwise than for the purpose of bringing a criminal to justice, namely in an effort to conceal their earlier negligent and/or improper investigations ." 62 Again the underlined particulars were added by amendment on 29 September 2002. The appellants' counsel described them, without effective opposition, as - " … an amplification and crystallisation of the particulars of malice to reflect what we would say is the evidence and the inferences flowing from the evidence. … It is just simply a matter of bringing the pleadings in line with the evidence that has been elicited throughout the trial." 63 For abuse of process it was again alleged that the criminal process was used to effect an improper object, the particulars of the improper object being the same as in Mr Krivoshev's statement of claim with the addition of justification of the arrest. The judge's decision 64 O'Connor DCJ gave judgment on 27 July 2003. 65 His Honour gave a brief account of the charges and their disposal and an extended recitation of the causes of action. This included setting out many paragraphs of the statements of claim, amongst them the portions of the pleadings set out above. His Honour then described the purchase of the horses and their feeding regime, and described and made findings as to the events of 9 August 1997, 9 October 1997 and 10 October 1997. He described the charging of Mrs Krivoshev and the admissions by Mr Krivoshev, then in more detail the charges against Mr Krivoshev, the events of 10 March 1998 and the disposal of the charges. After some other matters his Honour dealt more or less serially with the causes of action, first with malicious prosecution, then with abuse of process, then with breach of duty, and finally with false arrest, but there was an inter-relationship between what he said as to the separate causes of action. 66 The judge's reasons were markedly founded on acceptance of the evidence of Ms Piddington, Mr Peyton and Mr Bell. 67 Early in the judgment his Honour said - "26. Before dealing with the facts in these cases, I interpolate that I did not form a favourable impression of MK during the course of his evidence. He conceded that he had become obsessed with the litigation and in fact carried out much of the research on the law concerning malicious prosecution before either he or his daughter KD were charged with any offences. 27. He was spending hours each day on the Internet immersed in such research. In fact it was part of his claim that the conduct of the Defendants had resulted in this obsession and in that sense It was compensable. 28. As will appear from the analysis of the facts, there is much of MK's evidence and that of his step-daughter's [sic] that I cannot accept. Where there is any conflict between the evidence of MK and KD with that of Piddington and Peyton, I prefer the latter. 29. The RSPCA Officers were most impressive witnesses. They were forthright, made concessions where appropriate and entirely professional in their approach to the difficult situation with which they were presented." 68 In the course of making his findings the judge stated on a number of occasions specific acceptance of the evidence of the RSPCA officers. (a) Mr Krivoshev had given evidence that he told Mr Bell on 9 October 1997 that he (Mr Krivoshev) was the owner of the horses. The judge said that having regard to the contemporaneous statement prepared by Mr Bell from entries in his notebook, he preferred Mr Bell's evidence that Mr Krivoshev did not do so but "rather misled Bell insofar as this aspect of the case was concerned". (b) His Honour began his account of the events of 10 October 1997 by saying that he preferred the evidence of Ms Piddington and Mr Peyton to that of the appellants, and he said he accepted Mr Peyton's evidence that both appellants were present when Mrs Krivoshev said that the horses were owned by Katie and Larissa and that at no stage did Mr Krivoshev admit that he was the owner or person in charge of the horses. (c) As part of his description of the events of 10 October 1997 his Honour said that he accepted the explanation of Mr Peyton and Ms Piddington "as to why they did not attempt to obtain any further particulars on 10 October having regard to the situation they found themselves in whilst attempting to seize the horses". (d) In relation to Mr Krivoshev's admissions on 28 January 1998, his Honour said - "In relation to issue of ownership, I am satisfied that at no stage prior to 28 January, 1998 did MK make any admissions that he was the owner or person responsible for the subject horses. In this respect, I accept the evidence of Bell, Piddington and Peyton and reject the evidence of MK." (e) In relation to the arrest of Ms Donnelly, his Honour said that he accepted the evidence of Mr Peyton in preference to that of Ms Donnelly on whether Mr Peyton grabbed Ms Donnelly forcefully by the shoulder; (f) When describing the hearing on 29 July 1998 his Honour said that Shepherd LCM's observations as to witnesses coincided with his own view, they being that Mr Peyton's evidence became more impressive the longer he was in the witness box and that Ms Piddington, Mr Hilton (also involved on 10 March 1998) and Mr Bell - " … gave evidence in a manner consistent with persons who were professional in their approach, carrying out their duties. I detected nothing to indicate a bias against the Defendant by any of these witnesses and their evidence I consider remains substantially intact after cross-examination." (g) It had been submitted that a statement by Ms Piddington dated 14 November 1997 headed with Ms Donnelly's name showed that she and Mr Peyton knew Ms Donnelly's name at that time. At whatever time it was, Ms Piddington had said that she was told the correct name by Mr Peyton, but she said that the heading had been altered from Katie Kaye after 10 March 1998 when Ms Donnelly's correct name was told to her. The judge accepted her evidence, for reasons which included that the name Katie Kaye was in the body of the statement when the correct name would have been expected but also because he "formed a very favourable impression of both Piddington and Peyton as far as their evidence is concerned". 69 As will be seen, this acceptance of the evidence of the RSPCA officers was extended to rejection of their acting with improper motive or out of spite or malice. 70 The judge's dealing with the causes of action was to the following effect. Malicious prosecution 71 There had been prosecutions which terminated in the appellant's favour. The judge said that it was for the appellants to prove that the prosecutions had been instituted or maintained without reasonable or probable cause and also maliciously. 72 As to reasonable and probable cause, the judge directed himself by reference to an extended statement by Jordan CJ in Mitchell v John Heine & Son Ltd (1938) 38 SR NSW 466 at 469-70, the passage set out by his Honour including that reasonable and probable cause requires - "(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty. In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds." 73 As to malice, his Honour referred to Fleming, Law of Torts, 9th ed, p 685, for "a wider meaning than spite, ill will or spirit of vengeance and [including] any other improper purpose such as to gain private collateral advantage". 74 His Honour held that Mr Krivoshev had not established either absence of reasonable and probable cause or malice in relation to the charges of failing to provide food for the horses. In summary, he so held because - (a) the horses were in a poor condition as at 9 August 1997 and effectively in the same condition on 10 October 1997; (b) Dr Radvan and Dr Lawrie attributed their poor condition to inadequate feeding; (c) Mr Krivoshev admitted that he owned and was in charge of the horses; (d) on this information, it was reasonable that the charges be laid; (e) the RSPCA was not told about water contamination until 29 July 1998, and when then made aware of Professor Hunt's opinion withdrew the charges (which his Honour particularly thought was inconsistent with malice). 75 His Honour held that Ms Donnelly had not established absence of reasonable and probable cause or malice in relation to either the charge of failing to provide food for a horse or the charge of failing to provide her name and address. 76 In relation to the charge of failing to provide food for a horse, the judge said that he "made the same observations as I did in relation to the case bought [sic] by [Mr Krivoshev]". He said that the respondents were "in possession of material from [Mrs Krivoshev] indicating that [Ms Donnelly] was the owner of the horse", that "her conduct and admissions on the 10 October 1997, was consistent with her ownership and control", and that even though Mr Krivoshev had made the admissions on 28 January 1998 that "does not prevent a charge being brought against another who has a similar responsibilities". 77 In relation to the charge of failing to provide her name and address, the judge said - "181 Insofar as the charge of failing to provide her full name and residential address, as indicated earlier, I accept the evidence of Officers Peyton and Piddington, that they were unaware of her full name and residential address until 10 March 1998. There is no issue that upon being requested for her full name and address that she failed to respond whilst at the Wollongong premises of the Defendant. 182 Having heard all the evidence the Magistrate found her guilty of this offence beyond reasonable doubt. KD succeeded on Appeal on the basis of evidence introduced at the Appeal concerning a condition of Post Traumatic Stress Disorder, of which the Defendants were unaware. 183. Although acquitted of this offence it is of relevance, that she was acquitted in the circumstances described. It seems to me to have some bearing on the issue of reasonable and probable cause. It was a defence unknown to the Defendants. 184. From the facts of the case, I am unable to impute a [sic] improper purpose for the Prosecution. Having listened to the evidence of the Officers from the RSPCA, I like the Magistrate, and indeed the comments of Howie J, found them to give an honest account of their actions, without bias or without a suggestion of prejudice or improper motive. 185. In those circumstances I am not satisfied that malice has been established in the material before me." Abuse of process 78 The judge directed himself, with reference to Fleming pp 687-8 and Varawa v Howard Smith Ltd (1911) 13 CLR 35 at 91, that it was necessary that the charges be brought for a purpose other than that served by the criminal process, and that as well as the improper purpose "there must be some other overt act or threat as distinct from the proceedings themselves in furtherance of that purpose". 79 His Honour said succinctly - "189. In the circumstances of this case I am not satisfied that the evidence would permit such a finding. My reasoning in respect of the claim in malicious prosecution is also apposite to the claim based on abuse of process." Breach of a duty of care 80 The judge noted the respondents' submission that no duty of care was owed in respect of the prosecutions of the appellants, with reference to Grimwade v State of Victoria (1997) 98 Crim R 526 and Wilson v New South Wales (2001) 53 NSWLR 407 dealing with the exercise of prosecutorial functions. He noted the appellants' submission that officers of the RSPCA were not in the same position as prosecutors acting on behalf of the State. His Honour said that he did not find it necessary to decide "this interesting issue", and that assuming that there was a duty of care he considered that there had been no breach of the duty of care. 81 As to the offences of failing to provide food to the horses with which Mr Krivoshev was charged, his Honour said that it was asserted that the respondents should have known of the water contamination. He did not agree, and thought that "the most obvious reason on the material on which [the respondents] acted was that the horses were being inadequately fed" and that it was reasonable to bring the charges without investigations to exclude that possibility. 82 As to the offence of failing to provide food to a horse with which Ms Donnelly was charged, his Honour said that it was alleged that the respondents knew or ought to have known that Mr Krivoshev was the owner of the horses and was responsible for their welfare and treatment, but that this did not exclude prosecution of Ms Donnelly where she had also admitted ownership and responsibility because "[m]ore than one person could have such a responsibility and accordingly would be subject to the provisions of the Act." His Honour further said - "207. In relation to the particulars of negligence that the Defendants knew or ought to have known that the Plaintiffs had not failed to provide food that was proper and sufficient and that they knew or ought to have known that the water contained in the dam had been contaminated in findings in respect of MK's case are equally applicable to the Plaintiff KD." 83 As to the offence of failing to provide her name and address, his Honour said that Ms Donnelly alleged that the respondents knew or ought to have known her identity and address, but found that they did not know it and did not accept that they should have taken steps such as searching registers or enquiring from third parties, as was suggested in submissions, rather than require Ms Donnelly to give her name and address. False arrest 84 The judge declined to find an improper purpose in the charge of failing to provide the name and address, see his Honour's [181]-[185] above. More specifically as to the arrest, his Honour said - "208. In relation to the abuse of process allegation brought against the Defendants by KD, she relied upon the following particular: - i) Utilising the criminal process in an effort to justify the unlawful charge and arrest of the Plaintiff on 10 March, 1998. 209. In addition, the Plaintiff relied upon the particular of utilising the criminal law process in an effort to conceal their negligent and/or improper investigation of the events occurring at the time when the animals were seized and at the time thereafter leading up to the trial. 210. These allegations to a certain extent are connected with KD's other claim that her arrest and charging constituted false imprisonment. 211. In this regard, I accept the evidence of Officer Peyton as I have in respect of other aspects of the claim. I accept his evidence that at no stage did he use force in relation to his dealing with KD and I do not accept that he yanked KD towards him during the course of the arrest of the Plaintiff at the Wollongong premises of the RSPCA. 212. At all times he remained calm and in no way was he abusive towards the Plaintiff during the course of the arrest and their dealings at the Wollongong Police Station. In relation to the charge of failing to provide particulars of her name and residential address, I accept that Officer Peyton asked her on a number of occasions whether she understood the request. I accept his evidence that the Plaintiff was glaring at him during the course of such questions. He did not have the advantage of having the opinion of Dr Kefalos before him which no doubt may have excused her lack of response. 213. Prior to the arrest I accept that the decision had been made that she be charged with the offences relating to the feeding of the animals and hindering Officer Peyton with the performance of his duties on the 10th October 1997. It would of course become important in order for these charges to be processed that they have the correct name and address of the accused person. The Act creates an obligation upon a person to provide these particulars when required. 214. It seems to me therefore, on the evidence that there was a clear failure to provide the particulars as required under the Act and that in the circumstances it was not improper to arrest KD. Curiously, MK who was present during this process did not volunteer KD's particulars and waited until they were at the Police Station to be of any assistance in this regard. 215. I am not satisfied that the RSPCA Officers acted out of spite or malice towards the Plaintiff in orchestrating her arrest and detention as suggested by KD's pleadings. In the circumstances I am not satisfied that her arrest and charging and imprisonment was false, unfair and unjustified as asserted." 85 His Honour concluded his reasons - "216. It follows, therefore, that I am not satisfied that the Plaintiff's [sic] have established malicious prosecution; abuse of process; negligence or in respect of the Plaintiff KD, false imprisonment. Accordingly, in those circumstances, there will be a verdict for the Defendants in respect of both actions." The grounds of appeal 86 The appellants retained solicitors and were represented by counsel for the proceedings in the District Court. The notice of appeal containing their grounds of appeal was filed while they still had legal assistance, and outline written submissions prepared by their counsel were filed in support of the grounds of appeal. 87 At some point the appellants ceased to have legal assistance. They filed amended written submissions, which repeated the written submissions prepared by counsel but with additions of their own. The oral submissions at the hearing of the appeal were presented by Mr Krivoshev and adopted by Ms Donnelly. 88 The grounds of appeal were - "1. The Trial Judge delivered his reasons for judgment on 27 July 2003, a delay of some 10 months after the conclusion of the hearing in September 2002 weakening the Trial Judge's advantage on his critical findings as to the evidence generally and in relation to the credit of the witnesses. 2. The Trial Judge's delay in delivering his judgment erodes his reasoning occasioning a substantial wrong and miscarriage of justice. 3. The Respondent failed to produce documents in answer to subpoenae issued by the Appellant during the course of the trial below, critically the original notebook of Officer Bell which was produced to the Court below after the conclusion of the hearing and before judgment, placing the Appellants at a gross forensic disadvantage to test the Respondents' evidence at trial. 4. The Trial Judge misdirected his mind when finding that the arrest, charging and imprisonment of the Second Appellant for failing to give her correct name and address was appropriate. 5. The Trial Judge erred in not finding that the arrest and imprisonment of the Appellants was unlawful and inappropriate. 6. The Trial Judge erred in not deciding the issue that a distinction could be drawn between the immunity involving the Crown and a private organisation such as the Respondents involving the duty of care owed to the Appellants and a breach of the said duty conferred by statute in the prosecution of the Appellants. 7. The Trial Judge erred in finding that the Appellants had not been maliciously prosecuted by the Respondents. 8. The Trial Judge applied the wrong test in determining against the finding that there was malice on behalf of the Respondents in the investigation and prosecution of the Appellants and relevantly to the issue of reasonable and probable cause." 89 At the hearing of the appeal the appellants sought to rely on evidence additional to that before O'Connor DCJ. The respondents opposed that course, but were content that submissions concerning the additional material be received and rulings given as part of the decision of the appeal. I will address the additional material as appropriate in the course of these reasons. 90 The submissions put by the appellants were often difficult to follow; the obsession to which the judge referred was evident, and was not conducive to reasoned argument either in taking up the original written submissions (which themselves were sometimes obscure) or putting the appellants' further submissions. Where I have described the appellants' own submissions, I have endeavoured to capture what I understood to be their substance. Grounds 1, 2 and 3 91 These grounds were dealt with together in the written submissions. 92 In the original written submissions the key submission was - "4.4 It is respectfully submitted that the critical findings of credit made against the Appellants and, more particularly, the positive findings made as to the truthfulness of the witnesses called for the Respondents, is undermined for the reasons set out more fully below - (i) The First Respondent failed to answer in full the subpoena issued by the Appellants in the trial below particularly in relation to the original notebooks. (ii) The Appellants were put at a forensic disadvantage during the trial to test further the veracity of the witnesses through their documentary evidence and other documents not produced in answer to the subpoena. (iii) That the substantial delay of 10 months had affected his Honour's understanding of the scope and range of issues, and to demonstrate that all relevant facts had been properly and carefully assessed and all pertinent submissions dealt with. R v Maxwell (unreported, 23 December 1998, Court of Criminal Appeal, Spigelman CJ, Sperling and Hidden JJ) setting out the second last and last paragraphs quoted from Goose v Wilson Stanford & Co and as referred to in Hadid v Redpath (BC299197191/01, unreported, NSW Court of Appeal, Steine [sic], Heydon JJA and Grove J, CA 4017/01, NSWCA 416, 20 November 2001 at paragraphs 30, 31)." 93 The appellants' amended written submissions contained the additions - (a) that the judge failed to take into account the "evasiveness, contradictions, lies, fabrications and frequent memory lapses" of the respondents' witnesses, particularly Ms Piddington, Mr Peyton, Mr Wozniak and Mr Coleman, and that "for these reasons His Honour showed bias"; (b) that the judge failed to take into account relevant evidence, there following under forty-one dot points instances of what was said to be relevant evidence; (c) that the judge's verdict and findings of fact "is not representative of the evidence"; and (d) that the judge did not take all the evidence into account, there following under forty-three dot points as "the most important for the respective witnesses for the Respondents" instances of evidence which it was said "goes to credit, absence of reasonable and probable cause and malice of the respective Respondents witnesses". 94 There was much repetition under the various dot points. Sometimes there were words which could indicate the relevant or importance as seen by the appellants; often the relevance or importance was left unexplained. 95 As well as the amended written submissions, the appellants filed a document purporting to set out the findings of fact which they challenged. Although the document went further, it was largely further repetition of the matters under the dot points, inviting findings that the respondents' witnesses were neither credible nor truthful and that the appellants' causes of action were made out. 96 The appellants' additional written submissions and the document last mentioned more properly went to grounds of appeal such as grounds 5 and 7, so far as they asserted error in fact-finding on his Honour's path to his conclusions. In oral submissions some of the matters found within them were raised by way of challenge to his Honour's conclusions, but many were not raised. 97 Grounds 1, 2 and 3 have different focuses, and are not properly combined. I will first consider the complaint that the RSPCA failed to answer a subpoena in full, a complaint which does not impugn the findings made on the evidence before the judge but could establish that the trial miscarried. I will then consider the significance of any delay in delivery of reasons. The assertion of bias on the part of the judge is not within the grounds of appeal, is in any event without merit, and does not call for consideration. Subpoenaed documents 98 This complaint was not founded on additional evidence led by the appellants. The respondents themselves read as additional evidence in the appeal an affidavit concerning the failure to produce documents. The appellants did not seek to supplement the evidence for the purposes of the complaint. 99 On 10 August 2001 a subpoena was issued addressed to the RSPCA requiring the production of "[a]ll records, documents, reports, investigations, notebooks in relation to" the allegations in the charges against Mr Krivoshev and Ms Donnelly. 100 The evidence did not disclose the pre-trial response to the subpoena, but apparently no documents were produced. 101 At various times during the hearing in the District Court there arose questions about production of documents falling within the subpoena - (i) 27 August 2002: call for the notebook of Ms Piddington containing the statement taken from Mr Krivoshev on 28 January 1998; (ii) 28 August 2002: call for the same, and "any other notebook from the RSPCA"; (iii) 28 August 2002: request for a response to the subpoena the next day; (iv) 29 August 2002: call for Mr Peyton's diaries, notebooks, statements and other documents; (v) 5 September 2002: complaint that Ms Piddington had referred in evidence to "all sorts of files and documents" which had not been produced; and (vi) 5 September 2002: call for original documents comprising any brief or briefs of evidence relating to any investigations and/or prosecutions of Ms Donnelly; 102 On each occasion counsel for the respondents said, in short, that searches were being made in order to respond. A number of documents were produced on 29 August 2002, and it was said by counsel that "we have covered everything except the original notebooks of Ms Piddington for the 10th October incident and the record of interview at Fairfield Court on 28 January 1998". That turned out to be incorrect. More documents were produced on 6 September 2002, although it was said that the original notebooks of Ms Piddington and some other documents were outstanding. It is evident from the transcript that non-production of documents remained contentious as the trial progressed. 103 According to the affidavit, the solicitor with the carriage of the District Court proceedings on behalf of the respondents had in her office as at 21 June 2002 a bundle of folders which the deponent described as containing "all the original documents and material in relation to the criminal prosecution of Ms Donnelly and Mr Krivoshev". The solicitor went on maternity leave on 24 June 2002 and returned on 6 March 2003. On 11 March 2003 she was handed a cardboard storage box containing the bundle of folders. The deponent gave a brief description of the contents of the folders. The description of one folder included "extracts of Piddington, Peyton and Bell's notebooks"; the description of another included "extracts from notebooks". 104 The respondents appeared to accept that the documents in the folders were not made available to the appellants in the period June 2002-March 2003, and that they fell within the subpoena and at least in part within the calls made in the course of the hearing. 105 On 13 March 2003 the respondents' solicitors produced the bundle of folders to the District Court, with a covering letter consenting to the appellants having immediate photocopy access. They wrote to the appellants' solicitors enclosing an explanatory affidavit of the solicitor and advising of the production and consent. The letter included that "the original Piddington notebooks (X2)" had been produced, and - "We note that in the event any event any further submissions or directions are required Judge O'Connor will be in Wagga for 2 weeks commencing on Monday and will be back in Sydney in the week commencing 31 March 2003 and the week commencing 28 April 2003. We look forward to hearing from you in relation to whether any further directions or orders are sought." 106 Mr Bell's original notebook was not part of the bundle of folders, and in that respect ground 3 of the grounds of appeal is ill-founded. There was no evidence that the RSPCA held the original notebook of Mr Bell in or after August 2001 and failed to produce it. 107 There was no evidence disclosing whether or not the documents produced to the District Court on 13 March 2003 were inspected by the appellants. While there was no express evidence, in submissions it was common ground that the appellants made no application to have witnesses recalled for further cross-examination, or to reopen to given further oral evidence or to tender further documents. 108 In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 the High Court considered the consequences of failure of the successful party to comply with an order for discovery of documents. The Court regarded it as more than a question of fresh evidence, and akin to miscarriage of a trial through malpractice or surprise (at 140-1). Their Honours said (at 142-3) - "It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, 'either particularly in relation to the parties or generally in relation to the administration of justice'. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so." 109 Their Honours' observations are equally applicable to failure of a party to comply with the order for production of documents contained in a subpoena. 110 The respondents' attention to production of documents was lamentable, and has scarcely been explained by the affidavit. In my opinion, however, the interests of justice will not be served by upholding the appeal because of failure properly to answer the subpoena. 111 The appellants did not go beyond the generality of the written submission earlier set out. There was failure fully to answer the subpoena "particularly in relation to the original notebooks" and the appellants were "put at a forensic advantage during the trial to test further the veracity of the witnesses through their documentary evidence and other documents not produced in answer to the subpoena". No attempt was made to demonstrate, or even instance, from the documents in the bundles of folders produced on 13 March 2003 how they or any of them might have assisted in testing the veracity of witnesses or otherwise in promoting the appellants' case at the trial. 112 The written submissions concentrated on the original notebook of Mr Bell and other original notebooks. As I have said, the original notebook of Mr Bell was not in the bundles of folders. If it was in any event unavailable, as appears to have been the case, any failure fully to answer the subpoena is of no consequence. In any event, the evidence at the trial included a copy of the notebook for 9 and 10 October 1997, and Mr Bell was examined and cross-examined upon the notebook entries. 113 As to other original notebooks, the evidence at the trial included what we were told, without contradiction, were copies of the notebooks of Ms Piddington, made for the purposes of proceedings prior to the District Court hearing and thus available although the originals were not. The documents before us included what appeared to be copies of the notebooks, and the transcript of the proceedings at the Fairfield Local Court recorded that Ms Piddington had access to her notebooks as at 29 July 1998 and was cross-examined on them. On 9 and 10 September 2002 Mr Peyton was examined and cross-examined upon his notebooks in the District Court, and the originals of those notebooks were then available. 114 Unless the copied pages of Ms Piddington's notebooks were less than all relevant pages, or the original pages contained material alterations not discernible from the copies, the appellants had these contemporaneous records in the District Court hearing for such assistance as they provided at the trial. No attempt was made to show that the content of the original notebooks of Ms Piddington, available as at 13 March 2003, was not adequately and accurately available through the copies. 115 Nothing was put forward enabling us to assess the significance, if any, of deprivation of documents in the bundles of folders other than Ms Piddington's notebooks. I infer that many of the documents would have been available through copies, in the same manner as the copies of the notebooks. 116 In the absence of other evidence, it may be that the proper inference is that the documents produced on 13 March 2003 were inspected shortly thereafter and it was considered that they did not advance the appellants' cause, hence no application was made to the judge. Even if that is not the correct inference, it was open to the appellants to inspect the documents and to apply to have witnesses recalled for further cross-examination or to give further oral evidence or to tender further documents. No explanation was given for their failing to do so, nor was it sought to show by reference to the documents now available that that course was not realistically open. 117 It is necessary to do more than assert generalised forensic disadvantage. In my opinion, it has not been shown that any failure fully to answer the subpoena occasioned an injustice whereby the interests of justice call for a new trial. Delay in giving judgment 118 The hearing in the District Court took many days. The documents tendered fill four volumes of appeal books, and through the oral and documentary evidence the lives of a number of people were canvassed in some detail. The pressures upon judges of the District Court are well known, and his Honour no doubt had immediately to turn to other hearings while endeavouring to write a reserved judgment. All this tempers the description of "delay", and tempers any criticism of the more neutrally stated passage of about ten months from the end of the hearing to the delivery of judgment. 119 In Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568 the Full Court of the Federal Court examined the authorities on delay, including Goose v Wilson Sandford & Co (1998) 142 SJLB 92, R v Maxwell (CCA, 23 December 1998, unreported) and Hadid v Redpath [2001] NSWCA 416 to which the appellants' submissions referred. 120 It was said in that case at [69] - "Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should: cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 at [11]–[12]. Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe." 121 Their Honours' consideration indicates that delay may be material to an appeal because - (a) significant delay may require a more comprehensive statement of the relevant evidence, and of the reasons for fact-finding, than otherwise, in order to make clear that delay has not affected the decision through loss of understanding of the issues, fading recollection of the evidence or the attraction of a simple solution; and (b) since a trial judge's advantage in seeing the oral and documentary evidence unfold may be weakened by delay, delay must be taken into account when reviewing the trial judge's findings made after a significant delay from the time when the evidence was given. 122 In particular, their Honours' reasons included - "[71] In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision. [72] In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses: Hadid v Redpath [2001] NSWCA 416; BC200107191 at [34] and [53]." 123 Their Honours referred at [75] – [76] to the passing of time "that alters the normal approach of an appellate court", described as "operative delay". Delay is of course undesirable, and is contrary to the public interest in the prompt resolution of disputes. But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered – there would be no sense in causing further delay by a new trial. What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little. 124 There are difficulties in determining that the passage of time is operative delay. A reserved judgment is commonly written with some lapse of time and the intervention of other matters. The assumption that the passage of ten months is destructive of recollection and understanding where the passage of (say) two months is not may not be justified; and with the advantage of transcript, contemporaneous documents and the capacity of a trained mind, why is the passage of ten months, albeit undesirable, necessarily destructive at all? There is not a factual enquiry, and judges are not rated according to retentive capacity and application to the evidence and issues. On one view, delay is a possible explanation for deficiency in decision-making or expression of the decision, the deficiency being otherwise found, and what matters is the quality of the decision-making assessed by regard to the issues, the evidence and the judge's reasons. 125 These and other questions were understandably not the subject of submissions, and this is not the case in which to take them further. The decision of clear issues turning on stark evidence may be less susceptible than the decision in a complex case, but even in the complex case – perhaps particularly in a complex case – well-directed brevity is still a virtue. The circumstances of each case must govern. 126 There was no ground of appeal that O'Connor DCJ failed to give adequate reasons. Grounds of appeal 1 and 2 were directed to fact finding, particularly as to the credit of witnesses, and to an obscure assertion of erosion of reasoning. In the original written submissions there was then focus on the findings adverse to the appellants' credit and favourable to the credit of the respondents' witnesses. The appellants' additional written submissions enlarged this, asserting a more general failure to take evidence into account not only as to credit but also as to reasonable and probable cause and malice. 127 His Honour's conclusions as to reasonable and probable cause and malice very much rested upon his acceptance of the evidence of Ms Piddington, Mr Peyton and others, not only in preference to the evidence of Mr Krivoshev and Ms Donnelly but also (for example) in acceptance that they did not know Ms Donnelly's name and address prior to 10 March 1998, did not have an improper purpose in charging her with failing to provide her name and address (the judge's [184] above) and did not act out of spite or malice in arresting her (the judge's [215] above). Other grounds of appeal challenged these conclusions. Consideration of the passage of the ten months in this case should be left for the grounds of appeal which challenge the judge's fact-finding and conclusions. Grounds 4 and 5 128 These also were dealt with together in the written submissions. They were concerned with the so-called false arrest. It should be said that Mr Peyton's status as a special constable, with power to arrest, was not in question at the trial, nor was it said that any formalities in the process of arrest had not been observed. 129 As has been seen, the cause of action was trespass to the person. Mr Peyton did lay his hand on Ms Donnelly, and she was detained. It was for the defendants to establish a justification for what was done, relevantly that the arrest was a proper exercise of the power of arrest given to Mr Peyton. For some reason, in para 14A of her statement of claim Ms Donnelly took up the burden of establishing that there was no justification for the arrest. It will be noted that she did not allege that the arrest and detention were for an improper purpose. 130 In the original written submissions the appellants' argument was founded on observations by Smart AJ in Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 at [35] - "This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded." 131 The reference to Director of Public Prosecutions v Carr was preceded by the submission that s 27A of the Act provided for the penalty of a fine rather than imprisonment, and was followed by the bald submission that - " … the arrest and imprisonment of [Ms Donnelly] for failing to provide her name and address was an arbitrary abuse of the Respondent's power and the Learned Trial Judge erred in not finding that the arrest and imprisonment of [Ms Donnelly] was an abuse of the Inspector's powers". 132 The argument appears to have been that the arrest was a trespass to the person because it was an excessive use of Mr Peyton's power of arrest. It was unclear whether the excess depended on the contention that Mr Peyton already knew Ms Donnelly's name and address, as the reference to Director of Public Prosecutions v Carr might suggest, or whether it was submitted that the use of the power of arrest was excessive in any event. 133 The judge found that Ms Piddington and Mr Peyton did not know Ms Donnelly's correct name prior to 10 March 1998. The appellants' oral submissions included that he erred in so finding, because Ms Piddington's statement dated 14 November 1997 earlier mentioned named Ms Donnelly in its heading. The judge's reasons for accepting that the heading had been later changed, going beyond his favourable impression of Ms Piddington and Mr Peyton, are sound, and his finding should not be overturned. There was not excessive use of the power of arrest for this reason; it is unnecessary to consider whether, if there were, the arrest would have been unlawful (cf Fleet v District Court of New South Wales [1999] NSWCA 363 at [71]). 134 So far as it was submitted that the use of the power of arrest was otherwise excessive, Director of Public Prosecutions v Carr does not support the argument. In Director of Public Prosecutions v Carr the arrest was held to be lawful, but because it was inappropriate to use the power of arrest evidence of what happened thereafter was held to have been obtained improperly within s 138 of the Evidence Act and to be inadmissible. Unless the arrest of Ms Donnelly was unlawful, there was no trespass to the person, as appears to have been recognised in the pleaded allegation of lack of justification for the arrest. 135 Otherwise than through the argument next described, unlawfulness through abuse of power was not developed in the appellants' submissions. 136 The appellants' additional written submissions were that the judge erred in not finding that the arrest was unlawful "as it was the arresting officers [sic] own documentary evidence which proved the arrest was unlawful", and the judge acted "contrary to irrefutable contemporaneous documentary evidence". The documentary evidence to which this referred was a computer generated Custody Management Record ("the Record") in relation to Ms Donnelly's period at Wollongong Police Station on 10 March 1998, in fact not a record prepared by Mr Peyton. The argument as developed in oral submissions was that Ms Donnelly's arrest was unlawful because for an improper purpose. It was submitted, with reference to Zaravinos v State of New South Wales [2004] NSWCA 320 at [37], that Ms Donnelly was arrested for the purpose of questioning her, and that the arrest was unlawful because it was arrest for an extraneous purpose; it was said that the judge should have found that extraneous purpose in Mr Peyton. 137 On one view, this went beyond the pleaded case. However, the judge's reasons dealing with the arrest of Ms Donnelly earlier set out (his [208]-[215]) make it plain enough that, whatever the question of justification for the arrest might strictly have involved, in the conduct of the hearing issues of improper purpose in the arrest were raised. His Honour referred in his [208] - [210] to the particulars of abuse of process as "to a certain extent … connected with" the false arrest. Going beyond the particulars of abuse of process, the particulars of malicious prosecution added by amendment on 29 September 2002 included "Orchestrating the unlawful assault and detention of the Plaintiff to facilitate further questioning of her", and the judge specifically adverted in his [215] to the RSPCA officers acting "out of spite or malice towards the Plaintiff in orchestrating her arrest and detention as suggested by KD's pleadings". 138 The appellants' argument was to the effect - (a) under the heading "Original Grounds for Detention" in the Record was "In custody of RSPCA inspectors, appears ditressed [sic] for interview by RSPCA inspectors"; (b) Constable Simpson gave evidence that he would have made the entry "for interview by RSPCA inspectors" because he had been told by one of the RSPCA officers that Ms Donnelly was being detained for the purpose of questions; (c) Ms Donnelly arrived at Wollongong Police Station at 11.50 am, and she was taken at 11.58 am to an interview room where there was the attempt to interview her earlier noted; (d) on this evidence, the judge should have found that Mr Peyton arrested Ms Donnelly in order to interview her – in the language of the particular of malicious prosecution, "to facilitate further questioning of her". 139 That he had the extraneous purpose was put to Mr Peyton. It was specifically put to Mr Peyton that he took Ms Donnelly to the police station because he wanted to interview her and in the course of the interview obtain her particulars, which he denied. Mr Peyton said that he would have told the police officer at Wollongong Police Station that the reason for the arrest was that Ms Donnelly "failed to provide her particulars", and that he had not given interviewing her as the reason. He said that he knew that he could not detain someone purely for the purpose of interview, and did not do so, and that he took Ms Donnelly to the police station because he had arrested her and intending to offer her the opportunity to particulate in a record of interview, but did not arrest her for that purpose. 140 Mr Peyton had discussed "options" with Mr Coleman prior to going to Wollongong on 10 March 1998. The extraneous purpose was put to him in that wider context. With reference to Mr Coleman's memorandum of 10 March 1998, it was put to Mr Peyton that he and Mr Coleman had "cooked up a plan" whereby Ms Donnelly would be arrested, as part of discussion with Mr Coleman of "what to do about the extended Krivoshev problem". It was suggested that he and Mr Coleman had discussed "[t]rying to bring about a set of circumstances that would get her in the trap". Mr Peyton denied this, and said that he would not have arrested Ms Donnelly if she had provided her name. 141 It was not put to Mr Coleman, however, when he later gave evidence, that he had been party to cooking up a plan to arrest Ms Donnelly. In his cross-examination he was asked only whether he though Mr Peyton was high-handed on 10 March 1998, and whether he was embarrassed that Mr Peyton would arrest Ms Donnelly for failing to provide her name and address. He did not agree. This was despite the memorandum of 10 March 1998, and it would be difficult to maintain a case of extraneous purpose without taxing Mr Coleman, Mr Peyton's superior, with a directing or at least complicit involvement in arresting Ms Donnelly in order to interview her. 142 The appellants' reliance on the entry in the Record and the evidence of Constable Simpson was a poor basis for inviting a finding of extraneous purpose. 143 Constable Simpson was custody officer, under Sergeant Whitefield as custody manager. He referred in his evidence to what he described as "a manually written copy of the custody management record that was recorded by Sergeant Whitefield" and "a computer generated copy of the custody management record which I completed on that day". Both documents were tendered and admitted. 144 Sergeant Whitefield's record, which was in a different format from the Record, stated against "Grounds for detention (original)", "Cruelty to Animal Act". 145 Constable Simpson agreed that he created the computer generated copy of the Record "in association with [his] discussions with the RSPCA officers". He had no independent recollection of the discussions. He gave the evidence - "Q. And you have typed in two lines there. Could I just show you the document. The information leading to your typing in that material could only have come from the RSPCA officers; is that right? A. Generally, yes. Q. Well, in this case that happened, one or other of them told you what is in there; is that right? A. Yes. Q. And could you just read on to the record what the words are? A. It says, 'In custody of RSPCA inspectors. Appears distressed. For interview by RSPCA inspectors." Q. As the original ground of detention for interview by RSPCA officers, is that what you were seeking to convey? A. Sorry, can you repeat your question? Q. What I am saying is you don't say there in custody on suspicion of having committed armed robbery, but rather she is in the custody of RSPCA officers effectively for the purposes of conducting an interview? A. Yes. Q. So she is being detailed for the purposes of questions; is that what you are seeking to convey? A. At the original arrest time, yes. Q. So that she is not under arrest for having committed an offence or for the belief that she has committed and offence; correct? That is not what you say there, is it? A. No. That's not what I say." 146 Constable Simpson was not taken to another entry in the Record, appearing on the next page under the heading "Move Location" after entries describing when Ms Donnelly was in the dock and then in the interview room. The entry was in exactly the same terms, namely "In custody of RSPCA inspectors, appears ditressed [sic] for interview by RSPCA inspectors". 147 Constable Simpson was interpreting an entry. The words "in the custody of RSPCA inspectors" did not give the original grounds for detention , but simply recorded the state of detention. The appearance of distress must have been his own observation; it was certainly not part of giving the original grounds for detention. That Ms Donnelly was to be interviewed was unremarkable, since commonly a record of interview is taken following an arrest. 148 The words "for interview by RSPCA inspectors" appearing under the heading "Original Grounds for Detention" lost any significance for the appellants' argument when regard was had to the identical words under the heading for the movement record. The entry was not a record of the reason for Ms Donnelly's detention. It was narrative that Ms Donnelly was in the custody of the RSPCA inspectors, that she appeared distressed, and that she was to be interviewed by the RSPCA inspectors. 149 I do not think that there was evidence of any weight that one of the RSPCA officers told Constable Simpson that Ms Donnelly was arrested for the purpose of interviewing her. It is scarcely credible that the officers would have told Constable Simpson of an extraneous purpose for the arrest, and Sergeant Whitefield's record conveyed no more than arrest for an offence under the Act. 150 The judge did not specifically refer to the Record, or to the evidence of Constable Simpson as opposed to that of Mr Peyton, and give reasons for resolving the issue of an extraneous purpose by acceptance of the evidence of Mr Peyton. It may be that there was no effective submission of an extraneous purpose, when the extraneous purpose put to Mr Peyton was of a plan cooked up with Mr Coleman but Mr Coleman had not been cross-examined as to such a plan. From the reference in his [215], however, the judge had in mind whether the arrest of Ms Donnelly was in order to question her, because he referred to orchestration of her arrest and detention. 151 The judge was emphatic in his favourable regard to the evidence of (amongst others) Mr Peyton, and in my opinion it is clear that he accepted Mr Peyton's evidence that he did not arrest Ms Donnelly to facilitate further questioning of her. The entry in the Record as explained by Constable Simpson does not in my opinion provide a basis for holding that his Honour was in error in doing so. 152 In so concluding I take account of the matters in the appellants' additional written submissions and their oral submissions directed to impugning the judge's acceptance of the evidence of the RSPCA officers. I refer to those matters later in these reasons. I also take account of the passage of the ten months, and of the absence of specific reference in his Honour's reasons to the Record and the evidence of Constable Simpson. The judge's favourable regard to the evidence of Ms Piddington and Mr Peyton was more than a bald assertion. He saw both of them give evidence over some time, and commented on that fact. He formed his view based also, for example, upon Mr Peyton's notes and the content of Ms Piddington's statement of 14 November 1997, and the view he expressed was not only from demeanour but also from objective materials. This was an unusual case, and I am satisfied that the evidence and issues would have endured in the judge's mind and that his Honour's acceptance of the evidence of Mr Peyton was with due regard to whether the arrest was for an extraneous purpose. Ground 6 153 This ground of appeal asserted error in not deciding the "interesting issue" involved in whether a duty of care was owed in respect of the prosecutions of the appellants. There was no occasion to decide it if, on the assumption of a duty of care, there were no breaches of the duty of care. The judge so found, and hence there was no error in failing to decide the interesting issue. 154 The appellants' original written submissions as to ground 6 were confined to the existence of a duty of care, and did not go to breach of the duty of care if it was owed. The written submissions upon whether a duty of care was owed were perfunctory, and the appellants were not in a position to provide assistance on a matter of potential difficulty. It is unnecessary and undesirable to enter upon that matter. 155 There were no additional written submissions as to ground 6. Some of the submissions on the questions of reasonable and probable cause, malice and false arrest could be adapted to breach of a duty of care if owed, but they were not, and a new ground of appeal directed to breach of a duty of care can not fairly be taken up when the appellants did not raise it. There is no occasion to disturb his Honour's conclusions that there were no breaches of a duty of care. Grounds 7 and 8 156 These grounds were dealt with together in the written submissions. Ground 8 appears to assert an error of law in the application of a wrong test, while ground 7 is a generalised assertion of error. 157 The original written submissions did not identify the application of a wrong test, or meaningfully elucidate the generalised assertion. They were - "4.28 As to reasonable and probable cause, it has been said that the informant or accuser should take reasonable steps to inform himself of the true state of the case. See Mitchell v John Heine (1938) 38 SR (NSW) 466 at 469. 4.29 The above authority, of course, must be read together with the principles in Hicks v Faulkner (1878) QBD 167 at 171; Hadrick v Heslop (1848) 12 QB 267; and Commonwealth Life Insurance v Bryan (1935) 53 CLR 343, which distil the following as to reasonable and probable cause - 'an honest belief in the guilt of the accused person based upon a full conviction founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary, prudent and cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.' 4.30 Malice has a wider meaning than spite, ill will or spirit of vengeance and includes any other improper purpose such as to gain a private collateral advantage. 4.31 It is respectfully submitted that in the case of the Appellant, Donnelly, if the finding by the Learned Trial Judge that her arrest and imprisonment is incorrect and such finding is an arbitrary abuse of the powers of arrest by the Respondents, it is submitted that the finding of an absence of reasonable and probable cause and a finding that the wider meaning of malice must follow. 4.32 As to the Appellant, Krivoshev, it is submitted that the Trial Judge erred in reviewing the evidence available to the RSPCA prior to 29 June 1998. A further inquiry ought to have been conducted by the Trial Judge in reviewing what evidence was not obtained by the Respondents who have the facilities of veterinary surgeons, trained staff and other external sources to confirm or reject the proposition that the subject horses had been mistreated and not fed by the Appellant, Mr Krivoshev. 4.33 In further amplification of the above, it is submitted that the Trial Judge failed to apply a practical analysis of the evidence relied on by the Prosecutor to prosecute at the time: see Nye v State of New South Wales (unreported, NSW Supreme Court, O'Keefe J, 16 December 2003, Matter No: 21458/96)." 158 The appellants' additional written submissions were, in summary - (a) that Ms Piddington did not have reasonable grounds to enter the property on 10 October 1997 (this also appeared a little more fully in the document challenging findings of fact); (b) that the judge "erred in not finding that the pathology evidence and reports showed no evidence of non-feeding, as they were capable of showing if that were the case"; (c) that Ms Piddington's evidence that the condition of the horses was marginally improved meant that they were being provided with sufficient food, because "[i]f a horse is improving, that is gaining weight, it cannot be alleged that the feed is insufficient, otherwise there would be weight loss"; and (d) the judge erred in "not finding that [Ms Donnelly] was not in charge", because "being in charge implies only one person has overriding control, particularly in the circumstances of this case where the Appellants were in close proximity all the time by virtue of living together". 159 The appellants' additional written submissions, or something like them, were taken up in oral submissions. As well, the additions to the written submissions as to grounds 1, 2 and 3, to which I have earlier referred, are relevant to the generalised assertion of error in the judge's conclusions that absence of reasonable and probable cause and malice had not been made out, and some of the matters there instanced, or something like them, were taken up in oral submissions. I will first consider the application of a wrong test, then the additional written submissions as to grounds 7 and 8, and finally the assertion of error including the additions to the written submissions as to grounds 1, 2 and 3. Application of a wrong test 160 In Davis v Gell (1924) 35 CLR 275 at 282 Isaacs ACJ said that the essentials of the action for malicious prosecution balanced the right to vindicate the law and the correlative right to fair protection from unnecessary accusation, and that they were - "(1) The defendant must be the prosecutor. (2) The prosecution must have been groundless. (3) It must have produced damage. (4) It must have terminated favourably to the plaintiff, so far as such termination was possible. (5) It must have been without reasonable and probable cause. (6) It must have been malicious." 161 Absence of reasonable and probable cause and malice are distinct requirements, see also Mitchell v John Heine & Sons Ltd at 469, although absence of reasonable and probable cause can be evidence of malice. The grounds of appeal and submissions were unclear, but ground 8 appeared to be directed to malicious prosecution rather than abuse of process. Neither ground 8 nor the submissions maintained a distinction between absence of reasonable and probable cause and malice. 162 As I have said, for reasonable and probable cause O'Connor DCJ directed himself by reference to the statement of Jordan CJ in Mitchell v John Heine & Sons Ltd. Jordan CJ did not say, as the written submissions asserted, that the prosecutor should take reasonable steps to inform himself of the true facts of the case, although that would arise in considering whether the prosecutor's belief was based on reasonable grounds. Nor does Commonwealth Life Assurance Society Ltd v Brain (1934) 53 CLR 343 contain a passage in the terms set out in the written submissions. If it was counsel's derivation from the case, what was set out in the written submissions did not state a test more favourable to the appellants than that applied by the judge. 163 Although the respondents did not so submit, it may be that Jordan CJ stated too high a requirement that the prosecutor must believe that the accused is probably guilty of the offence. In the balance of which Isaacs ACJ spoke there may be good reason to prosecute although the prosecutor does not form a positive belief of probable guilt, and in Sharp v Biggs (1932) 48 CLR 81 at 106 and Commonwealth Life Assurance Society Ltd v Brain at 382 Dixon J spoke of the prosecutor's belief "that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted". In the lastmentioned case Evatt and McTiernan JJ at 391 accepted Dixon J's statement of principle, observing that it did not differ in any essential way from that of Sir John Salmond in The Law of Torts, 5th ed, (1920) at 548: the learned author's statement was that for reasonable and probable cause it was necessary that there be a genuine and honest belief "that the prosecution or other proceeding complained of was justifiable". In the absence of argument, it would be inappropriate to proceed in this case otherwise than in accordance with the law as stated by Jordan CJ. 164 Who should be regarded as the prosecutor in this case (the RSPCA or Ms Piddington/Mr Peyton) was left unclear, and in the conduct of the case may not have mattered. In accordance with the law as stated by Jordan CJ, it was for the appellants to establish that the prosecutor did not believe them guilty or that the belief in their guilt was based on insufficient grounds. 165 The judge did not express his findings and conclusions in terms of belief in guilt, rather than in terms of reasonable grounds for the charges, but it was not clearly put in cross-examination to either Ms Piddington or Mr Peyton that they did not hold a belief in guilt. At one point the cross-examiner put to Mr Peyton that he knew he was not authorised to charge a person "unless you have a belief based on reasonable grounds that the person in this case at the very least was involved in the provision of food to the animal and that the food was provided or not provided was improper or sufficient", with the thrust of the cross-examination that suspicion of guilt was less than a belief based on reasonable grounds. On the evidence, decisions about prosecutions were taken by Mr Bell or Mr Coleman, and to neither of them was it clearly put that they did not hold a belief in guilt. No complaint was made in the appeal that the judge did not speak of belief in guilt, and in these circumstances could not be made. 166 Material error in applying a wrong test has not been made out. The additional written submissions as to grounds 7 and 8 167 The submission that Ms Piddington did not have reasonable grounds to enter the property on 10 October 1997 was also put as a submission that Ms Piddington and Mr Peyton did not have reasonable grounds to seize the horses. The appellants based their submission on evidence given by Ms Piddington in the Local Court that Mr Bell had not explicitly instructed her to seize the horses, although she explained that she meant that she was not under an ultimatum to seize the horses but was under a "general direction" as to seizure. The submission seemed to be that Ms Piddington told the Krivoshevs immediately on arrival on 10 October 1997 that she had been instructed to seize the horses, that this immediate statement showed that she had not directed her mind to reasonable grounds for seizure, that the seizure was therefore wrongful, and that the charges were thereafter brought to cover up wrongful seizure. 168 There is no doubt the officers went to the property with seizure of the horses in mind, because they took the horse float, and plainly they acted on what Mr Bell told them as a result of his visit to the property on the previous day. Ms Piddington had also had the earlier observation of the horses. She said that the final decision as to seizure was made at the time. What mattered in the present case was the basis for the charges when they were later brought. That they were brought to cover up wrongful seizure is without rational support. There is nothing in this submission. 169 The oral submissions about the pathology evidence were as convoluted as the triple negative in the written submissions foreshadowed. As I understand it, the argument was as follows. The RSPCA took blood from the horses and submitted it for testing. Either because the blood was taken some time after the horses came into the RSPCA's possession, or because the blood was not submitted for testing for some time, the results of the testing were inconclusive in indicating one way or the other whether the horses had not been properly fed while on the property. It was suggested that the RSPCA had delayed taking the blood, or had delayed submitting it for testing, for fear that (or even because it knew that) blood analysis would indicate that the horses had been properly fed. 170 The evidence was confused, and the argument was not fully supported by reference to the evidence. Assuming that there was delay in taking blood or in submitting it for testing whereby the results of the testing were inconclusive, it was not put to the RSPCA officers involved in taking the blood and submitting it for testing that they had acted with base motive. The argument is inherently without force, and should not be entertained when the RSPCA officers were not taxed with its basis of impropriety. 171 The submission about the marginally improved condition of the horses was not well founded in the evidence of Ms Piddington. She said that the mare was marginally improved but "the pair of them were, I call it unchanged for all intents and purposes". The submission is in any event without substance. Marginal improvement in the mare would not negate failure to provide proper and sufficient food. 172 The submission about being in charge should not be accepted. Section 8 of the Act refers to "A person in charge of an animal … ". Section 4 contains an inclusory definition of "person in charge", encompassing the owner of the animal, a person who has the animal in the person's possession or custody or under the person's care, control or supervision, and other persons. There is nothing whereby only one of the different persons who can fall within the definition can at any given time be a person in charge of an animal within s 8. Mr Krivoshev may have been the owner of the horses and Ms Donnelly a person with the care of the horses, or vice versa. Both could have had the care of the horses – there is no reason why two persons should not have an animal under their care. Erroneous conclusions 173 The judge did not expressly find that the appellants had failed to establish that Ms Piddington or Mr Peyton did not believe them guilty. Probably there was no question of any belief of the RSPCA separate from that of these officers. His Honour's reasoning was, in short, that on the information they had there were reasonable grounds for the officers to bring the charges of failing to provide food for the horses, and that there were reasonable grounds for Mr Peyton to charge Ms Donnelly with failing to provide her name and address. Implicit in this was that the officers believed in the appellants' guilt. There was reasonable and probable cause, and further it had not been established that Ms Piddington or Mr Peyton acted maliciously in the extended sense by which his Honour directed himself. 174 In my opinion, no error has been shown in his Honour's conclusions. 175 The original written submissions appear to present two arguments. 176 The argument presented in relation to Mr Krivoshev was that the judge failed to analyse the evidence with regard to "what evidence was not obtained by the Respondents … to confirm or reject the proposition that the subject horses had been mistreated and not fed … ". This would also seem material to the charges of failing to provide food for the horse brought against Ms Donnelly. 177 If intended to go beyond what the blood tests did not show (see earlier in these reasons), this presumably was an argument that the RSPCA should itself have recognised that the condition of the horses might have been due to contaminated water, as suggested by Professor Hunt, and tested the water and decided not to bring or continue with the charges. The judge did not accept what appears to have been a similar argument, and observed that even if the RSPCA was aware of contamination that did not mean that the charges were brought without reasonable cause because whether contaminated water caused the weight loss "may well have been a debateable issue". If the argument went to some other evidence not obtained by the RSPCA, it was not explained. The RSPCA had a sound basis for considering that there were reasonable grounds for the charges, in the observations of the horses' condition and the opinions of Dr Radvan and Dr Lawrie, and I do not think it was shown that other steps should have been taken whereby it would not have charged the appellants or withdrawn its charges at an earlier time. 178 The argument presented in relation to Ms Donnelly was that, if her arrest was an abuse of Mr Peyton's powers, there was necessarily absence of reasonable and probable cause and there was necessarily malice. The argument fails, if for no other reason because it was not shown that the arrest was an abuse of Mr Peyton's powers. 179 I go to the matters under the dot points in the appellant's additional written submissions and in the document challenging finding of facts as to grounds 1, 2 and 3. Most were by way of challenge to the judge's preference for the evidence of Mr Bell, Ms Piddington and Mr Peyton over that of Mr Krivochev and Ms Donnelly; some went to more general acceptance of the evidence of the RSPCA officers. The judge was emphatic in that acceptance, see earlier in these reasons, and as I have said a few of the matters only were taken up in oral submissions. It was often difficult to see the point being made. 180 One matter apparently thought by the appellants to be of particular significance concerned events at Fairfield Local Court on 29 July 1998. It appeared to have two aspects. 181 It was submitted that Mr Bell had admitted making a false affidavit of service of reports of Dr Radvan and Dr Lawrie and a Dr Cannon, and implicitly that the judge should therefore not have considered him creditworthy. A reading of the transcript for 29 July 1998 does not support the submission. The reports were provided to Mr Krivoshev when other documents were produced under subpoena. There was unclear reference to accompanying notices of intention to rely on the reports, probably to the effect that the notices were also produced but taken back for completion. The learned Magistrate did not agree that what had occurred was service. Before the judge the cross-examination of Mr Bell treated the occasion as a "mix-up" in which he had not followed procedure, and did not put to Mr Bell that he had deliberately sworn a false affidavit. The appellants' present submission should not be accepted. 182 It was also submitted that Dr Radvan and Dr Lawrie had not been at the Fairfield Local Court on the morning of 29 July 1998, because Mr Wozniak then appearing for the RSPCA told the learned Magistrate that he did not have them available. The point appeared to be that the veterinarians had given evidence in the District Court that they had been at court, and that the false affidavit of service and a misrepresentation as to the presence of the veterinarians showed that the RSPCA was scared to have its veterinarians confront Professor Hunt and knew it did not have reasonable grounds for the charges. 183 The appellants sought to rely on additional evidence to establish that Mr Wozniak told the learned Magistrate that he did not have Dr Radvan and Mr Lawrie available. The appellants had tendered in the District Court a transcript of the hearing in the Local Court. The transcript recorded in short form the tender of three veterinary reports, objection to their tender, and that there was legal argument. The appellants tendered in this appeal the transcript underlying this summary ("the additional transcript"). According to the additional transcript, when tendering the reports Mr Wozniak said of the veterinarians, "I don't have them here, I don't intend to call – I'm relying in the Evidence Act in that regard, your Worship". 184 The additional transcript could have been obtained and tendered in the District Court. The sound recorder's notes were tendered and showed that there was a record of the matter transcribed in short form. In any event, the evidence of Dr Radvan and Dr Lawrie was that they were at Fairfield Local Court early in the morning and returned later in the morning. Mr Wozniak clearly enough wanted to rely on the veterinarian's reports, but it was not put to him that he was seeking to keep their authors from the witness box for fear that his case would be exposed as without foundation or for any other relevant reason. Even if the additional evidence were admitted, the appellant's present submission is without substance. The additional transcript should not be admitted. 185 It is convenient now to deal with the other items of additional evidence on which the appellants relied. 186 The judge's reasons included - "53. It was a recurring theme of MK's evidence that they were relying upon the advice in relation to feed given them by either the Leppington vets or the Rossmore Vets. In the circumstances this was an important aspect of the Plaintiff's case, as it illustrated, if accepted, of the care being taken for the welfare of the horses prior to seizure. 54. The only evidence adduced in relation to veterinary care or advice, given to MK was that of Mr Humphries, a veterinary surgeon from Rossmore Vets. 55. The records were produced by Mr Humphries, in response to a subpoena by the RSPCA. The only record of advice or attendance, was after the horses had been returned to MK following seizure. The horses were returned in August 1998 following the conclusion of the proceedings of the Fairfield Local Court. 56. MK gave evidence that Mr Humphries had attended the property prior to the seizure and had treated the horses for colic. 57. The records revealed that this visit occurred on the 22 October 1998, ie after the horses were returned by the RSPCA. 58. There was no evidence adduced from the Leppington vets in respect of any advice or treatment given to the horses at any stage whatsoever." 187 At a later point his Honour said - "Insofar as it was relevant for the purpose of these proceedings to establish that the Plaintiff was providing sufficient food for the horses, prior to their seizure, I have come to the conclusion that I can not accept the Plaintiff, MK's, evidence in this regard. I am reinforced in this view by the failure to call any of the vets from whom he says he received advice concerning the feeding regime." 188 The appellant tendered in the appeal a copy receipt from Leppington Veterinary Clinic dated 6 June 1997 recording the receipt of $20 from "Kaye". The apparent purpose was to support that Leppington Veterinary Clinic had given advice on feeding. 189 The feeding regime in fact followed by Mr Krivoshev would no doubt have been important in the prosecutions, but it was of only indirect relevance to the appellants' causes of action. The possible relevance need not be considered. Mr Krivoshev said that the receipt was found after he moved house and was not available for the District Court hearing. When Leppington Veterinary Clinic could have been subpoenaed to produce its records, it is difficult to accept that evidence of the payment, for whatever the veterinary purpose was, could not have been given. But it does not matter, because the receipt does not indicate anything more than a payment for a veterinary purpose. It does not support advice on feeding so far as that may have been relevant. The receipt should not be admitted. 190 I have referred to the judge's observation, in his [103], to the effect that Mr Krivoshev admitted ownership of and responsibility for the horses on 28 January 1998 because by that date he thought he had evidence to defend charges brought against him. The water analysis was dated 28 January 1998. The appellants tendered a copy letter dated 12 January 1998 from their solicitor to the RSPCA, through which Mr Krivoshev offered "to attend your premises for the purpose of making a written admission as to being the person in charge of the horses the subject of the previous complaint against his wife". It was said that this showed that the judge's observation was incorrect. 191 The letter was not fresh evidence, and could have been tendered in the District Court. In any event, the judge spoke in the terms "I suspect", as an observation rather than a finding. Mr Krivoshev's reason for making the admissions was unknown to the RSPCA, and the aside about it was not material to the outcome of the proceedings. The copy letter should not be admitted. 192 A matter in the oral submissions returned to the pathology evidence. It was submitted that Dr Lawrie had relied on the blood tests, and that his opinion was undermined by the common ground that the blood tests were inconclusive in indicating one way or the other whether the horses had not been properly fed while on the property. Implicitly, there was therefore absence of reasonable and probable cause and malice. 193 Dr Lawrie's certificate of expert evidence included that "[b]lood samples revealed changes consistent with a low plane of nutrition and dermatitis secondary to the lice infection". He was not asked about this statement. Whether he was referring to the blood tests earlier described is unclear, but if he was he spoke only of consistency with low nutrition and did not rest his opinion on the blood tests. It was not put to him that his opinion that the horses were inadequately fed was undermined by reliance on worthless blood tests, and his opinion specifically rested upon weight gain on proper feeding and exclusion of relevant disease process. The submission is without substance. 194 I have gone to the matters listed in the appellants' additional written submissions apart from those already mentioned. I do not think that any of them provides any ground for impugning the judge's acceptance of the evidence of the RSPCA officers, or detracts from the judge's view that absence of reasonable and probable cause had not been shown and malice had not been established. These reasons are already long, and I will not make them longer by recitation of the inconsequential: see Australian Breeders Cooperative Society Ltd v Jones (1977) 150 ALR 488 at 503; Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 175; Bar-Mordecai v Rotman [2000] NSWCA 123 at [212]. 195 Here also I take account of the passage of the ten months, and I do not overlook that the judge did not in terms deal with all the particulars of malicious prosecution in the statements of claim. The particulars were not well drawn. They rested in large part on alleged inadequacy of investigation or absence of reasonable grounds for the charges. Some of the particulars raised the lack of forewarning of the service and arrest on 10 March 1998, which could be thought undesirable conduct but would not suffice for malice. The remainder in substance were negated by the judge's findings, and the judge clearly declined to find the malice to which they went. The judge was alive to the particulars, since they were in the pleadings which he set out. Again, I am satisfied that the evidence and issues would have endured in the judge's mind, and I consider that his Honour's conclusions that absence of reasonable and probable cause had not been shown and that malice had not been made out are not to be doubted because of the lapse of time. The result 196 I propose that the appeal be dismissed with costs. 197 HODGSON JA: I agree with Giles JA. 198 YOUNG CJ in EQ: I have read the draft judgment of Giles JA and agree with it. However, on one aspect of the case I wish to make some observations of my own. 199 As would have been apparent to those who were in Court when this matter was argued, I was very concerned with the way in which Ms Donnelly was arrested. 200 As is clear from most authorities in the area, arrest is inappropriate for minor offences unless there is some special circumstance; see eg DPP v Carr (2002) 127 A Crim R 151 at [35]. This is a vital guarantee of freedom in our community and must be strictly respected. Particularly it behoves those in charge of persons with powers of arrest who are not professionally trained full time police to make sure it is observed. 201 The material in the appeal books contains a strong suggestion that the present dispute was not the first that existed between the Krivoshev family and the RSPCA. The evidence was that when asked her name, Ms Donnelly gave the name Katie Kaye. In the light of the almost notorious fact that persons with foreign sounding names beginning with "K" or "J" often use the surname "Kaye" or "Jay" and if Ms Donnelly's nickname was "Katie" as it appears it might have been, it might well have been argued that in giving the name Katie Kaye, she had given her name. The point was not argued, so I can move on. 202 In any event it would appear on the authorities such as R v Lister (1955) 72 WN (NSW) 491 that had a summons issued to Katie Kaye then it was probably properly issued as there is no requirement to summons a defendant by her baptismal name. Any name by reputation suffices. 203 The arrest centred on s 27A of the Prevention of Cruelty to Animals Act 1979. That section provides that an officer who finds a person committing an offence against the Act (or whom the officer suspects on reasonable grounds of having committed or attempted to commit such an offence), may require that person to inform the officer forthwith of that person's full name and residential address. 204 This sort of provision was analysed in Hazell v Parramatta City Council [1968] 1 NSWR 165. In that case Isaacs J said that the words "finds a person committing an offence" refers to catching a person in flagrante delicto and it is not a proper use of the power to require a person to give her name and address if the officer already knows it. In Hazell's case a council officer at Parramatta required Mr Hazell, a well-known Parramatta solicitor, to give his name and address and in due course Isaacs J found a verdict against the council for false arrest. 205 However, the learned Judge below found that the RSPCA inspector did not know Ms Donnelly's name and address so that the prime thrust of Hazell's case does not apply. 206 Hazell's case was followed by W Kearney J in the Northern Territory in Conrad v O'Brien (1990) 101 FLR 107, who said that it was necessary on a charge of this nature for the relevant officer to give evidence that he or she did not know the proper name and address of the person against whom the request was made. 207 The other problem about s 27A is that the word "finds" is used in the opening words of sub-section (1) which, as Isaacs J said in Hazell's case, indicates someone found in flagrante delicto, but yet para (b) talks about finding a person whom the officer suspects of having attempted to commit such an offence. I do not need to deal with that problem in this case and I do not intend to. 208 The general law is that once a person is arrested he or she must be taken by the most direct route to a magistrate. There is abundant authority for this proposition, the latest of which appears to be R v Dungay (2001) 126 A Crim R 216, 219. There is an exception in the Crimes Act 1900, Part 10A, that a person under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence; see s 354. 209 "Police officer" is not defined in the Crimes Act so one needs to go to the Interpretation Act 1987 where in s 21 "police officer" is defined as, "a member of NSW Police who is a police officer within the meaning of the Police Act 1990". One then has to go to the Police Act 1990 where police officer is defined, in s 3, as "a member of NSW Police holding a position which is designated under this Act as a position to be held by a police officer". 210 The RSPCA officers were treated below, probably correctly, as special constables appointed pursuant to s 101 of the Police (Special Provisions) Act 1901. Under s 103 of that Act - "Every special constable appointed under this Act shall have, exercise, and enjoy all such powers, authorities, advantages, and immunities, and be liable to all such duties and responsibilities as any police officer of the rank of constable duly appointed now has or hereafter may have by virtue of the common law or any Act or Imperial Act for the time being in force." 211 I have given consideration as to whether s 103 is sufficiently broad to vest in special constables the very considerable discretions vested in police officers under Part 10A of the Crimes Act. Despite the usual necessity to bring a person who has been arrested immediately before a magistrate, there is a dispensation to allow investigation for usually up to four hours. 212 I am not at all sure that the dispensation is a "power, authority, advantage or immunity" within s 103 of the Police (Special Provisions) Act. Furthermore, Part 10A seems to envisage a police officer within the formal police system. 213 However, again it is unnecessary to go into this because it was not a matter which was raised below. 214 Although I have concerns about the mode of arrest and what happened, my concerns did not appear to be those of anyone else involved in the case. As Giles JA has said, the learned District Court Judge correctly adjudicated upon the matters before him. Accordingly I agree with the orders he proposes. ********** 11/04/2005 - "office" altered to "offence" - Paragraph(s) 149 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.